Inquiry is made for a clarification of Formal Ethics Opinion 83-F-46 and 83-F-46(a) relating to whether nurses employed by hospitals are individuals who may not be interviewed by the plaintiff's attorney in a malpractice claim against the hospital.
The inquiry is sought in order to urge the Ethics Committee and the Board to apply the ruling of Upjohn Co. v. United States, 101 S.Ct. 677 (1981) that attorney-client privilege is not limited to management or administrative level employees but may be extended to any corporate employee.
The attorney-client privilege is embodied in Canon 4 of the Code of Professional Responsibility which provides, "A Lawyer Should Preserve the Confidences and Secrets of a Client." The purpose of the privilege, as noted in the Upjohn case, is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer being fully informed by the client. One of the recognized purposes of the privilege is to encourage clients to make full disclosures to
The Supreme Court in the Upjohn case stated:
The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney: 'The protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.' Citing City of Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 (ED Pa. 1962).
See also Diversified Industries, 572 F.2d at 611; State v. Circuit Court, 34 Wis. 2d 559, 580, 150 N.W.2d 387, 399 (1967) ('the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer') ....
Formal Ethics Opinions 83-F-46 and 83-F-46(a) did not relate to matters concerning attorney-client privilege. The opinions state that non-management or non-administrative level employees of a corporate defendant are deemed to be witnesses and not parties and that plaintiff's attorney is not prohibited, pursuant to Disciplinary Rule 7-104, from interviewing them without the knowledge or consent of the corporation or its attorney.
Disciplinary Rule 7-104, "Communicating With One of Adverse Interest", is found under Canon 7 of the Code which provides, "A Lawyer Should Represent a Client Zealously Within the Bounds of Law." The rules relating to attorney-client privilege and communicating with one of adverse interest are based upon entirely different and diverse policy considerations.
Formal Ethics Opinions 83-F-46 and 83-F-46(a) are hereby approved. Further, it is the opinion of this committee that nurses employed by hospitals are individuals who may be interviewed by the plaintiff's attorney without the consent of the attorney for the hospital in a matter involving the facts of a medical malpractice claim against the hospital; provided, however, that any communications between the hospital attorney and nurses are subject to the attorney-client privilege.
This 29th day of April , 1985.
Edwin C. Townsend, Chairman
W. J. Flippin
Henry H. Hancock
APPROVED AND ADOPTED BY THE BOARD